The Constitution Has Masked Protesters Covered

In response to the Dakota Access Pipeline protests, North Dakota has enacted four new laws clearly aimed at protesters. One of them stands out: The law makes it a misdemeanor to wear a mask or hood while committing a crime. That sounds reasonable -- anonymity can facilitate crime, and it makes sense to punish a masked bank robber more harshly than an unmasked one. Yet the law is more troubling in the context of the punishment of protesters, who sometimes cover their faces to make a political point. The mask law therefore raises a constitutional question: How should we think about laws that seem to be targeted at conduct but may actually be aimed at speech?

Imagine the law had been enacted after a much-publicized crime in which a mask had made it hard to catch the perpetrator. A law that targets conduct -- like wearing a mask -- ordinarily gets special constitutional review only when someone comes up with the idea of violating the law through symbolic speech.